The Sky’s the Limit – Sometimes

You probably haven’t spent much time wondering about who owns that sky above your house? You may be surprised to find out that, according to Public Utilities Code Section 21402, that sky is yours – to a point. So, what is this curious asset worth and, more to the point, what can you do with it? Scott and Lynn Powell, Humboldt County homeowners, found the answer the hard way.

The Powells wanted to make minor alterations to their home. “Fine” said the County, as long as the Powells provided an aircraft overflight easement as required by the County’s General Plan. The Powells, willing to assume the role of David to the County’s Goliath, filed suit, arguing that this requirement was not substantially related to the modification of their home and, in fact, resulted in a taking of their property. Under the Constitutions of the United States and California, the Powells filed an action for just compensation from the County. Goliath won.

In Powell v. County of Humboldt, the Powells asserted that the overflight easement condition did not meet the “essential nexus” and “rough proportionality” tests that emerged from the U.S. Supreme Court’s decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard. The Appellate Court, however, said “not so fast,” stating that before looking at “nexus” and “rough proportionality,” it would first have to determine if a compensable taking would have occurred outside the permitting process if the County had simply “appropriated” the easement. If not, there would be no need to get to the Nollan and Dolan takings tests.

To make this determination, the Court noted that the Powells provided no evidence that the overflight easement would substantially interfere with their use and enjoyment of their property or cause a measurable reduction in their property value. The Court then examined whether there was a “per se physical taking” of the Powells’ property. As opposed to the “regulatory” taking that the Powells were alleging, a “per se physical taking” requires a permanent physical occupation or invasion, not simply a restriction on the use of private property.

The Court focused upon the fact that Public Utilities Code Section 21403 expressly allows aircraft to use the airspace over private property, meaning that the Powells never owned the right to exclude aircraft from the airspace above their property. The overflight easement would add no “invasion” or “occupation” to the Powells’ airspace other than what already existed under Section 21403. At the risk of oversimplifying, the Court’s bottom line was that the Powells lost nothing by granting the easement. Therefore, there would have been no compensable taking even if the County simply appropriated the airspace and, as a result, no need to address the “nexus” and “rough proportionality” tests.